Summary
In Edenfield v. C.V. Seal Co., Inc., 83 Mont. 49, 270 P. [2] 642, 646, it was aptly said: "This court and other courts have said, on many occasions, that a court cannot scrutinize too closely the relation between husband and wife with respect to business dealings between them where creditors are concerned. (Keller v. Flanagan, 66 Mont. 144, 158, 213 P. 222, 225.)
Summary of this case from Fousek v. DeForestOpinion
No. 6,250.
Submitted June 8, 1928.
Decided July 12, 1928.
Fraudulent Transfers — Creditors' Bills — Evidence — Sufficiency — Findings — When Controlling on Appeal — Husband and Wife — Pleadings — Complaint — Inconsistent Allegations — Special Demurrer — When General Demurrer Does not Lie. Appeal — Equity Cases — Findings of Trial Court Conclusive, When. 1. The supreme court will not overturn the findings of the trial court in an equity case unless the evidence clearly preponderates against them. Fraudulent Transfers — Creditors' Bills — Evidence — Sufficiency. 2. In a suit in the nature of a creditor's bill to set aside fraudulent transfers of all of the personal property of the maker of a promissory note, made for the purpose of preventing the holder thereof from satisfying any judgment he might obtain against the maker, evidence showing that the latter after due date of the note transferred a two-fifths interest in the property to his wife, and a few days after service of summons in the action on the note organized a corporation with the aid of his wife and an employee, the bulk of the capital stock of which was held by the wife and the maker's father, the latter of whom was ignorant of the formation of the company and who paid nothing for the stock standing in his name, to which corporation the defendant maker turned over all his remaining property, held to warrant a finding that the transactions were fraudulent. Same — Evidence — Weight to be Given on Appeal to Findings in View of Fact That Court and Jury Saw and Heard Witnesses Testify. 3. Where the testimony of defendant's wife charged with having aided and abetted the husband in perpetrating a fraud upon a creditor, as it appeared in the record, was alone sufficient to warrant a conclusion that she was a party to the fraud, the findings of the court and jury who saw her upon the stand, observed her demeanor, heard her testifying and saw her countenance during examination are entitled to added weight on appeal. Same — Husband and Wife — Business Transactions Between Them to be Closely Scrutinized by Courts. 4. While the existence of the relationship of husband and wife between grantor and grantee is not of itself a badge of fraud, the relation is often a convenient means for the perpetration of a fraud in the matter of transfer of property when claims of indebtedness are made between them, and therefore courts cannot too closely scrutinize their business dealings where the rights of creditors are concerned. Same — Complaint — When Allegations not Open to Contention That Under Them Plaintiff had Remedy at Law. 5. The various allegations in a complaint must be read together; hence, where a judgment creditor in a fraudulent transfer action had alleged that defendant sold all his personal property to one who claimed to be the owner thereof, a further averment that the sale was not accompanied by a delivery of the chattels nor followed by an actual and continued change of possession but that they remained in possession and under the control of the seller, when read in connection with the other allegations, was not open to the charge that thereby the plaintiff had pleaded himself out of court by such averment in that under it he had an adequate remedy at law (attachment or execution) and was precluded from relief in equity. (MR. JUSTICE MYERS dissenting.) Pleadings — Complaint — Inconsistent Allegations Open to Special Demurrer — When General Demurrer Does not Lie. 6. If a complaint is inconsistent in its allegations it is open to attack by motion or special demurrer; if it states a cause of acton upon any theory, it is not vulnerable to a general demurrer nor subject to attack after judgment on technical grounds. Fraudulent Transfers — Creditor's Suit — What Sufficient to Fasten Specific Lien on Property Alleged to have Been Fraudulently Transferred. 7. A creditor's suit to set aside an alleged fraudulent transfer of his property by a debtor lies under the conditions set forth in paragraph 2 above, where plaintiff after securing judgment had execution issued and served on the transferee company which answered that it owed the transferor nothing and had no property of his in its possession, the service of the writ together with notice garnisheeing all the right, title and interest of the debtor in property held by the company having been sufficient to fasten a specific lien upon such property in favor of plaintiff so as to entitle him to maintain the suit. (See Wheeler Motter Co. v. Moon, 49 Mont. 307.)
Appeal from District Court, Treasure County; G.J. Jeffries, Judge.
Messrs. Campbell Carolan and Mr. E.E. Fenton, for Appellants, submitted a brief; Mr. T.W. Carolan argued the cause orally.
Mr. C.L. Harris, for Respondent, submitted a brief and argued the cause orally.
STATEMENT OF THE CASE BY THE JUSTICE DELIVERING THE OPINION.
This case presents the following situation: On March 1, 1915, Clarence V. Seal executed and delivered to one French a promissory note whereby he promised to pay to French $1,500 two years after date, with interest at seven per cent per annum until paid. On March 6, 1916, Seal paid $105 interest. Nothing more. Before maturity French indorsed the note to Edenfield, the plaintiff. As Seal did not pay, plaintiff placed the note in the hands of an attorney for collection. In response to a letter dated July 5, 1923, demanding a settlement, Seal called upon and discussed the matter with the attorney, but without result.
On October 5, 1923, Seal executed to Mary Seal, his wife, a promissory note for $5,000 due October 5, 1925, and to secure the payment thereof executed to her a mortgage covering his cattle, horses, hogs, farming implements and his interest in a beet crop grown upon what is known as the McCuistion place, upon which the Seals lived.
The attorney wrote Seal with respect to the matter again on January 18, 1924, but Seal did not pay any attention to it.
On December 15, 1923, Seal executed to his wife a bill of sale wherein he purported to sell and assign to her an undivided two-fifths interest in all his personal property. On February 6, 1924, the plaintiff commenced suit upon the note, and summons was served on Seal on March 10, 1924; on April 21, 1924, his default was entered for want of appearance and judgment was rendered against him for the sum of $2,528.45.
Five days after the service of summons upon him the defendant Seal, together with his wife, and Howard Dillon, his employee, executed articles of incorporation of the C.V. Seal Company. The stated objects and purposes of the corporation were to raise, buy and sell livestock of all kinds and to engage in a general farming and agricultural business. The place of business was given as Finch, Rosebud county, Montana. The directors for the first three months were C.V. Seal, Mary Seal and Howard Dillon. The capital stock was given as $30,000, divided into 1,200 shares of the par value of $25 each, and it was stated that the amount of the capital stock actually subscribed was as follows: C.V. Seal, 40 shares; Mary Seal, 160 shares; S.W. Seal, 200 shares, and Howard Dillon, 1 share. The record indicates that the defendant, referred to hereafter simply as Seal, immediately turned over all of his property to the corporation. Mortgages which the defendant Seal had executed to the First National Bank of Forsyth in due time were paid by the corporation from a sale of a portion of the property which Seal had turned over to the corporation, or new mortgages were executed to the bank in lieu thereof.
Executions upon the judgment were issued July 14, October 10, and December 6, 1924.
The execution of July 14 was directed to the sheriff of Yellowstone county and in pursuance thereof the sheriff attempted to garnishee money due Seal from the Great Western Sugar Company for the year 1923 on account of sugar beets grown and delivered by Seal to the sugar company. It was determined eventually that $177.42 was due Seal from the sugar company, although the C.V. Seal Company claimed the money, but it was applied upon the judgment.
The execution of October 10 was directed to the sheriff of Treasure county. On October 11 the writ was served upon the defendants Seal and Mary Seal individually and as president and secretary, respectively, of the C.V. Seal Company and also upon Howard Dillon, one of the directors of the company. The sheriff levied upon and attached all the right, title and interest of defendant Seal in and to all debts and money due him by the C.V. Seal Company "and all property in the possession of or under the control of the said C.V. Seal Company," and all stock and shares of stock of the C.V. Seal Company, owned by Seal, and all dividends declared or to be declared to be paid to Seal "and any money to which he may be entitled by reason of his ownership of the capital stock of the said C.V. Seal Company"; and all persons were notified not to transfer or remove the property or any part thereof until released according to law. Mary Seal made a statement in writing, in response to the writ, that the C.V. Seal Company did not owe Seal any money; that it did not have in its possession or under its control any property belonging to him; that he was the owner of four shares of the capital stock of the company but there were no dividends due or to be paid thereon; that the four shares had a par value of $25 each. Whereupon the sheriff returned the execution unpaid and unsatisfied.
The execution of December 6, directed to the sheriff of Rosebud county, was returned nulla bona.
On the second day of February, 1926, the plaintiff commenced this action as a creditor's bill. The plaintiff alleged the fact that he had obtained judgment against the defendant Seal; that at the time of the commencement of the action upon which the judgment was predicated Seal was engaged in farming and raising livestock on what is known as the McCuistion place; that he was the owner of horses, farming equipment and machinery, cattle, hogs and the like, of the value of $10,000; that Seal, Mary Seal and Howard Dillon had incorporated the C.V. Seal Company, hereafter referred to as the company; that upon its organization Seal sold to the company all his personal property, which is described in some detail, intending thereby to sell and convey to the company all his "property, holdings and interest," thereby to transmute all of his interest therein, which was the whole thereof to the company; and that the company "ever since the sale aforesaid" has claimed, and now claims, to be the owner of said property, and claimed to be the owner thereof at the time of the commencement of this action, and claims that Seal is not the owner of the property or any part thereof, and that the only interest he has therein is four shares of the capital stock of the company; that the sale was made to hinder, delay and defraud the plaintiff, a creditor of Seal; that at the time of the organization of the company Seal was insolvent and was an unwilling debtor, and that the purpose and motive of the organization of the company was to enable him to place his property beyond the reach of his creditors, and particularly the plaintiff, so that the same could not be reached by the ordinary process of law, nor by execution issued on any judgment obtained by the plaintiff, which the other incorporators well knew, and the three agreed and confederated together to incorporate the company with that end in view; that the sale of the property in the manner aforesaid to the company did obstruct and "now obstructs the enforcement of the judgment aforesaid, in that said property cannot be reached by execution upon said judgment, and the sale of said property to the said defendant company, in the manner herein alleged, prevents the sale of said property in satisfaction of said judgment"; that an additional reason for the creation and organization of the company was to enable Seal to continue his business of farming and growing sugar-beets for the Great Western Sugar Company under contract, in the name of the company, and thus to place the earnings and profits of Seal's farming beyond the reach of his creditors and beyond the reach of the ordinary process of law, and to enable him to sell and dispose of the hogs and cattle in the name of the company which would receive the proceeds thereof for the use and benefit of Seal as fully and completely as he had done before the creation of the corporation.
Further allegations set forth that the business and affairs of the company were managed and directed by Seal as he had directed his own business before the organization of the company; there was no change; it is alleged that the company is a creative entity in name only, its entire business and affairs being owned, controlled and directed by Seal, and that the sale of the property to the company was and is fraudulent and fictitious, made without a delivery of the property to the purchaser and without an actual and continued change, or any change, of possession, and without consideration; that none of the capital stock of the company issued to Mary Seal, Silas W. Seal and Howard Dillon was paid for in cash or property or other consideration; that Seal was the sole and only owner of all the property so sold as aforesaid and he is in truth and in fact the owner thereof, although the company claims to be the owner of the livestock, farm equipment and other personal property described. The complaint then recites the issuance of the different executions and the result, or lack of result, therefrom. It then recites dealings with the property which Seal had in form turned over to the company, and alleges that the company holds the proceeds, or some of the proceeds, thereof. It also contains allegations respecting the receipts of money by the company for Seal from the Great Western Sugar Company and charges that unless the court directs the Great Western Sugar Company to pay into court money due or to become due the company as bonuses under the contract for growing sugar-beets for the year 1924, the money will be paid to the company and pass beyond the reach of process of the court and the money will be applied to the use and benefit of Seal and thus the plaintiff will be hindered and delayed, cheated and defrauded.
The complaint prays that the purported sale of all property by Seal to the company be set aside and held for naught; that the corporation be held to be an involuntary trustee of the property and the proceeds from sale of any thereof; that the company be directed to pay into court such proceeds, and that the same be applied to the satisfaction of plaintiff's judgment against Seal; that the defendants (except Seal) be decreed to be involuntary trustees of the capital stock of the company; that the sugar company be directed to pay into court any money due or to become due the company, as bonus or otherwise, for the beet crop of 1924, to abide the judgment of the court, and for general relief.
After a general demurrer to the complaint was overruled the defendants C.V. Seal Company, Mary Seal, Howard Dillon and Clarence V. Seal answered the complaint. They admitted the execution of the note to French and that Seal did not make any payment on the note except the sum of $105; admitted that plaintiff instituted the suit mentioned in the complaint but denied all other allegations respecting it.
The defendants denied all allegations of fraud or fraudulent intent; denied that any additional money, as a bonus for beets, will be paid Seal by the sugar company; denied that Seal sold to the company all of his personal property, including his livestock, farm equipment, implements and machinery, and alleged that "the said property was not, in truth and in fact, owned by the said Clarence V. Seal, but that all of the property sold to the said corporation, including all of the wagons, harness, farm implements, farm equipment, implements of husbandry and livestock now owned by the said C.V. Seal Company" was owned, at the time of the sale thereof to said corporation, by the defendants Silas W. Seal, Mary Seal and Clarence V. Seal jointly, and that the said Clarence V. Seal was acting as the manager of the business and property jointly owned by them; that the property was sold by the defendants to the company at the price of $10,000 and that the defendants took the number of shares of the capital stock subscribed for by them in payment of the proportion of the purchase price due them for their respective interests in the property; admitted that the company "now claims to be the owner of so much of said property as remains in its possession, and the defendants allege that said company is now, and has been ever since the date it purchased the same the lawful owner and holder of said property, and all thereof"; alleged that Seal is not the owner of the property or any part thereof and asserted that his only interest in it consisted of the ownership of four shares of the capital stock of the company. A reply, denying all affirmative matter of the answer, was filed.
The cause came on for trial before the court sitting with a jury. At the close of plaintiff's case the defendants moved the court to discharge the jury and to make findings of fact and conclusions of law in favor of the defendants. The court overruled the motion. The defendants did not offer any testimony. The court submitted three special findings to the jury. In answer to the first the jury found there was not any bona fide sale by Seal to either his wife, or his father, of any interest in his property prior to the incorporation of the company. In answer to the second the jury said that the personal property which had been owned and possessed by Seal prior to the incorporation of the company was sold to the corporation for the purpose of delaying and defrauding the creditors of Seal. In answer to the third the jury said that at the time of the incorporation of the company there was not any change in the management or method of the business and property theretofore owned and possessed by Seal. The court adopted the findings of the jury and made others in favor of the plaintiff. In short, the court, in specific findings, found the allegations of plaintiff's complaint to be true, and entered a decree declaring that the transfer of the property by Seal to the company was fraudulent and was made for the purpose of hindering, delaying, cheating and defrauding the creditors of Seal and particularly the plaintiff; adjudged that the sale and transfer be set aside, and declared the company to be an involuntary trustee of the property mentioned and described in plaintiff's complaint for the benefit of the plaintiff. The defendants appealed from the judgment.
The sole assignment of error is that the evidence is insufficient to support the judgment.
At the outset we have in mind the well-known rule that this [1] court will not overturn the findings of the trial court unless the evidence clearly preponderates against them. ( Warren v. Senecal, 71 Mont. 210, 228 P. 71.)
The court's findings to the effect that the corporation was created by Seal, his wife, and his hired man to enable Seal to put his property beyond the reach of his creditors, and that his transfer of his property to the company was without consideration, are fully sustained by the evidence.
"Every transfer of property * * * with intent to delay or defraud any creditor or other person of his demands, is void against all creditors of the debtor, * * *." (Sec. 8603, Rev. Codes 1921.)
The court was justified in asserting in its decree that the [2, 3] sale of the property to the company was fraudulent and was made for the purpose of hindering, delaying and defrauding the creditors of Seal and particularly the plaintiff. That this is so the record fully affirms. Seal, his wife, and Dillon were residents of Montana. S.W. Seal was a resident of Illinois and was never in Montana except several years ago when his son, Clarence V. Seal, was ill. S.W. Seal testified by deposition. He said he was not interested in business with his son. At first, in his testimony, he said he did not know the corporation known as the C.V. Seal Company. He did not know it had been organized but his son had told him about it. He did not know how many shares he had and could not tell what consideration he had given for them. He did not remember that he had any conversation or correspondence with his son about the organization of the company. He said he had furnished his son $1,800, after the son had come to Montana, but this the son had repaid two years after the loan was made. He had never purchased an interest in his son's Montana property — "only what he gave me in the company"; he did not know when he became a stockholder in the company. In December, 1923, the son visited him in Illinois; the son then was not owing him any money and they did not discuss financial matters. He did not know his son was going to organize a corporation; he did not know his son was selling him a half interest in it; he did not know how much stock was issued to him. He then said that the stock was issued to him on "Clarence V. Seal's schooling," but he "did not know the amount." Such qualifications as he made with respect to the foregoing testimony did not tend to clarify it nor materially to weaken its force against the defendants.
We refrain from discussing in detail the testimony of Mary Seal, the wife. It is sufficient to say that the court and the jury, upon considering it, were warranted in making the finding that there was not any bona fide sale made by Seal to his wife of any interest in the property prior to the incorporation of the company; and that the court was justified in finding that she aided and abetted her husband in his attempts to place his property beyond the reach of his creditors. Her testimony, as it appears in the record, would warrant that conclusion. When we take into consideration the fact that the jury and the court had the advantage of seeing her upon the stand, of observing her demeanor, of hearing her voice and seeing her countenance while testifying, even greater weight is to be given to their findings.
This court and other courts have said on many occasions that a [4] court cannot scrutinize too closely the relation between husband and wife with respect to business dealings between them where creditors are concerned. ( Keller v. Flanagan, 66 Mont. 144, 158, 213 P. 222, 225.) The marital relation is often a convenient means for the perpetration of a fraud, and when claims of indebtedness are made between husband and wife, they must be subjected to the most searching examination, if not indeed suspicion. ( Lambrecht v. Patten, 15 Mont. 260, 38 P. 1063; Koopman v. Mansolf, 51 Mont. 48, 149 P. 491.) Of course the fact that such relationship exists between a grantor and a grantee is not of itself a badge of fraud. ( Hale v. Belgrade Co., 75 Mont. 99, 242 P. 425; Harrison v. Riddell, 64 Mont. 466, 210 P. 460.)
The defendants argue that because plaintiff alleged that the [5-7] sale of the property was not accompanied by a delivery thereof to the purchaser, nor followed by an actual and continued change of possession, but remained in the possession and under the control of Seal, the plaintiff had an adequate remedy at law and is precluded from relief in equity. But these allegations must be read in connection with other allegations in the complaint, and, as we have seen, the plaintiff also alleged that Seal sold all his property to the company, and that the company claims to be the owner thereof. And the company vigorously asserts that it does own all of Seal's property — or so much thereof as remains. Let it be conceded that plaintiff's complaint is inconsistent in some respects. The defendants did not attack it by motion or special demurrer. The rule is that if a complaint states a cause of action upon any theory it is not vulnerable to a general demurrer, nor subject to attack after judgment upon technical grounds. ( Hamilton v. Hamilton, 51 Mont. 509, 154 P. 717; Anderson v. Border, 75 Mont. 516, 244 P. 494; Hodson v. O'Keeffe, 71 Mont. 322, 229 P. 722.) A further answer to the particular objection is that it does not lie in the mouths of defendants to say, in view of their pleading, that Seal did not sell and deliver the property to the company.
The allegations of the complaint may be reconciled upon the theory that, while Seal in form did sell and deliver the property to the corporation, which he himself created, the transaction was fraudulent, a mere sham, to enable him to escape the payment of his debts. Nevertheless the company had title to the property. It made income tax returns, and in all outward respects functioned as a corporation. It wore the habiliments and held itself out to the world as a corporation. It was the coat which Seal wore to conceal his assets that he might hinder, delay and defraud his creditors.
The same may be said of the court's findings on this feature of the case. While the court found that there had not been any delivery, nor any actual and continued change of possession, of the property, and Seal continued in the possession thereof, this was upon the theory that the corporation was a mere sham of Seal's creation; but the court found that there had been a sale and transfer, which it declared fraudulent; and the court found that the company had sold property transferred to it by Seal, for which it received money "and now has the possession and control of the same"; and the court specifically decreed "that said sale and transfer be and the same is hereby set aside."
A creditor can avoid the act or obligation of his debtor for fraud where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation. (Sec. 8605, Rev. Codes 1921.) Manifestly, in view of what precedes, the court was justified in declaring that the sale and transfer of the property to the company, and the company's attitude with respect thereto, obstructed the enforcement by legal process of plaintiff's right to take the property. This is too clear for argument. Efforts to satisfy plaintiff's judgment by means of writs of execution had failed. Supplemental proceedings in aid of the executions, in view of the return made by Mary Seal, would have been unavailing. ( Johnson v. Lundeen, 61 Mont. 145, 200 P. 451.)
Defendants assert that plaintiff cannot recover for the reason that he did not have a specific lien upon, nor show a special interest in, the property when he commenced this action, and Wilson v. Harris, 21 Mont. 374, 54 P. 46, and Raymond v. Blancgrass, 36 Mont. 449, 15 L.R.A. (n.s.) 976, 93 P. 648, are cited. But these cases were distinguished in Wheeler Motter Merc. Co. v. Moon, 49 Mont. 307, 141 P. 665, in which it is pointed out that the statute under which they were decided had been amended, permitting a different procedure. We shall not retrace that ground. It is sufficient to say that the holding in the Wheeler Motter Case has not been questioned by any subsequent decision of this court, and we think it correct. The course approved in that case was followed by the plaintiff in this case. Here the plaintiff got judgment. While he was getting it, and after his debtor had been served with summons, the debtor caused a corporation to be formed — a corporation which was his alter ego — to which he transferred his property for the purpose of putting it beyond the reach of his creditors and particularly the plaintiff. The plaintiff got out executions upon the judgment. Pursuant to one the sheriff of Treasure county attached (garnisheed) all the right, title and interest of the debtor Seal in and to property in the possession of or under the control of the company and notified its officers — all its officers — "not to transfer or remove said property or any part thereof until duly released according to law." The company through Mary Seal answered that the company did not owe Seal anything, and that it had no property in its possession or under its control belonging to Seal. So did the garnishee in the Wheeler Motter Case. The plaintiff then instituted this action and clearly is entitled to maintain it. ( Wheeler Motter Mercantile Co. v. Moon, supra; and see Harrison v. Riddell, supra.) A contrary ruling in this case would open the door to innumerable schemes similar to that employed by the defendant Seal, whereby debtors would be enabled to avoid the payment of their just debts.
The court found (finding of fact No. 24) that the Great Western Sugar Company has deposited with the clerk of the district court $2,082.33 due the C.V. Seal Company under contract for the growing of sugar-beets, which the plaintiff is entitled to have applied on his judgment. There is not any evidence in the record to sustain this finding and it must be set aside, and the decree modified accordingly. If, however, the finding states the fact, upon application of the plaintiff the court may enter the necessary order to subject any money within its power to the satisfaction of plaintiff's judgment.
The cause is remanded to the district court of Treasure county with direction to modify its decree by eliminating therefrom finding of fact No. 24. When so modified the judgment will stand affirmed. The plaintiff, respondent here, shall recover his costs upon this appeal.
The opinion in this cause, promulgated April 26, 1928, upon which a rehearing was granted, is ordered withdrawn from the files and this opinion substituted in lieu thereof.
ASSOCIATE JUSTICES STARK, MATTHEWS and GALEN concur.
I dissent. In my opinion, plaintiff had a plain, speedy, adequate and complete remedy at law. Until he had exhausted that he had no standing in a court of equity ( Wilson v. Harris, 21 Mont. 374, 54 P. 46; Westheimer v. Goodkind, 24 Mont. 90, 60 P. 813; Wyman v. Jensen, 26 Mont. 227, 67 P. 116), and, in my opinion, he did not do it. Plaintiff alleged and the trial court found there was no consideration for the alleged sale of Seal's property to the Seal Company and that there was no delivery or change of possession thereof but that all thereof, at all times, was owned by Seal and remained in his possession and under his control, as the owner thereof; and there is substantial evidence to support the findings. Those basic findings being supported and accepted as true, in my opinion it is immaterial what other findings were made. Under those circumstances, plaintiff's remedy at law was to ignore the alleged fraudulent sale and to have an officer, by his direction, seize the property on writ of attachment or execution writ and sell it, if taken on execution, or hold it, pending judgment, if taken by attachment. There was no excuse for not doing so. ( Wilson v. Harris, supra; Westheimer v. Goodkind, supra; Wyman v. Jensen, supra.) There was no obstruction to the enforcement, by legal process, of his right to take the property. "It does not appear that the property was concealed or that it was incapable of manual delivery." ( Wilson v. Harris, supra.) As pointed out in Wilson v. Harris, supra, if any property seized be claimed by a third party, the creditor may keep in force the seizure by furnishing an indemnifying bond, if taken by attachment (sec. 9273, Rev. Codes, 1921), and, if upon levy under execution, action may be taken against such party. (Sec. 9460, Rev. Codes, 1921.) If unable to give the indemnifying bond, if demanded, which is not pleaded, he might at least go that far and show he had gone so far as he could and thus exhaust his law remedy to the extent of his ability. None of those things did plaintiff do.
According to the allegations and the findings above referred to, supported by evidence, for months after rendition of plaintiff's judgment and for weeks after issuance of execution writs all of the property was in the possession and under the control of Seal, as owner, and I see no justification for plaintiff in not having all of the property attached or levied upon, instead of foregoing that opportunity and seeking the aid of equity. As to speed, the former course would have been speedier than the one herein pursued. That it was a plain remedy is shown by the statutes and the decisions of this court I have cited. Of course, he was not required to pursue that remedy unless it was as adequate and complete, effective and efficient, as a suit in equity ( Bullard v. Zimmerman, 82 Mont. 434, 268 P. 512), but to my mind, it is apparent it was as adequate and complete, effective and efficient, as this proceeding, and more so. If it may be said it might have resulted in litigation with another party claiming the property, the answer is that it could have resulted in no more than has this proceeding. ( Wilson v. Harris, supra.) It was "so proximately certain as to be adequate to right the wrong complained of." ( Gray v. Citizens' Gas Co., 206 Pa. 303, 55 A. 988.)
"The extraordinary and peculiar powers of equity cannot be successfully invoked by those who have failed to first avail of whatever procedure the law affords." ( Wilson v. Harris, supra.) "Before coming into equity, he must exhaust his legal remedy." ( Wyman v. Jensen, supra.) "After the exhaustion of legal remedies, the extraordinary jurisdiction of chancery may be invoked." ( Westheimer v. Goodkind, supra.) In Wilson v. Harris, supra, this court speaks deprecatingly of the "strong temptation" to creditors aggrieved by transfers of property by debtors, which arouse suspicion, to invoke the powers of equity, before exhausting their remedies at law. Of the appeal to equity, the opinion says: "The proceeding is not very expensive, involves no great responsibility or risk and is not infrequently resorted to when unnecessary." It says, further, appeals by creditors to equity should not be encouraged unless a case is "strictly within the well established principles which determine the creditor's right to resort to equity." It is not every case of fraudulent transfer of property in which equity will interfere. A creditor, to avail himself of equity powers, must first do certain things, if possible, or show he could not do them, and put himself in a position to invoke equity.
The majority opinion refers to the fact that the answer denies the allegations of the complaint hereinbefore mentioned. It does, but the trial court found that the allegations were true. Plaintiff made them and, in my opinion, he is bound by them and upon appeal may not be allowed to repudiate them and take an opposite and inconsistent stand. ( Waite v. Shoemaker Co., 50 Mont. 264, 146 P. 736; Columbus State Bank v. Erb, 50 Mont. 442, 147 P. 617.) A pleader is presumed to have made his pleadings as strong in his favor as he could and it must be so taken. ( Montana Amusement Sec. Co. v. Goldwyn Dist. Corp., 56 Mont. 215, 182 P. 119.) It devolved upon plaintiff to make out his case and to make it out in accordance with his allegations. ( Marcellus v. Wright, 65 Mont. 580, 212 P. 299.) Upon appeal, counsel for plaintiff urge that this court should affirm the judgment "irrespective of the allegations of the complaint" but I do not believe that proper. ( Waite v. Shoemaker Co., supra.)
Counsel for plaintiff cite and rely upon the cases of Wheeler Motter Merc. Co. v. Moon, 49 Mont. 307, 141 P. 665, and Harrison v. Riddell, 64 Mont. 466, 210 P. 460; but I do not believe them applicable or inconsistent with the cases I have cited. In the Moon Case, decided on demurrer, it was alleged that the goods sold were transferred and that the purchaser took immediate possession, the exact opposite of the allegations, proof and findings in this case. Hence, it was held in the Moon Case that the purchaser was subject to garnishment and that it created a lien; not so here. In the Riddell Case, there was no allegation of nondelivery or no change of possession, as here, but the opinion shows that there was a "transfer of the business and property to the corporation." Moreover, in the Riddell Case the plaintiff was not satisfied with issuance of execution and return thereof nulla bona; he resorted to supplemental proceedings and failing by them to discover any property subject to his judgment he then resorted to equity and his right to do so was not questioned or an issue in the case. In the case at bar, plaintiff did not do that. He was content to rest upon execution returns practically nulla bona and then turn to equity, notwithstanding he swore in his verified complaint that there had never been any delivery or change of possession of the debtor's personal property, capable of manual delivery, but that, at all times, it was in the possession of the debtor, as the owner thereof, and notwithstanding he offered proof to support the charge and the trial court found it to be true. This is quite a different situation, in my opinion, from that disclosed by either of the two cases last mentioned. Had plaintiff even resorted to supplemental proceedings as was done in the Riddell Case, and apparently uncovered nothing, he would have come much nearer to putting himself in a position in which he could turn, justifiably, to equity for aid.
So far as the record in this case may disclose a disposition or any attempt to defraud, I have no sympathy with any such disposition or attempt but, upon plaintiff's theory of the case, I am convinced from the allegations of the complaint, the evidence and the findings of the trial court that there was no transfer of property to set aside and that there was at all times in Seal's possession personal property subject to the judgment and subject to manual seizure, which plaintiff easily could have had attached or levied upon, and that he had therein a plain, speedy and adequate remedy at law, proximately certain, which he should have used before resorting to equity and, failing so to do, he had no right to resort to equity. Indeed, as said in Wilson v. Harris, supra, until such remedy be used and exhausted, equity has no jurisdiction, for, as there said "equity may act in those matters only in which no remedy is afforded in the ordinary course of law or in which the remedy at law is deficient." Moreover, so far as the record discloses, much of the property may still be in Seal's possession and subject to execution levy."
Rehearing denied October 1, 1928.